Friday, August 12, 2011

Would you pay $100,000 for a law review article?

That's what Richard Neumann of the Hofstra University School of Law estimates to be the typical cost to the professor's institution of a law review article written by a senior professor at a fancy law school. He puts a price tag of $25,000 to $42,000 on articles written by junior professors at lower-tier schools.

Naturally this raises the question of why law students should be paying between half and three-quarters of this cost (those fractions represent the portion of a law school's operating budget that is covered by tuition at most law schools, with the fractional share tending to increase as one moves down the law school hierarchy).

Specifically Roberts claimed that legal scholarship is not relevant to the work of lawyers and judges, saying he is on the same page with Judge Harry T. Edwards of the U.S. Court of Appeals for the D.C. Circuit, who believes there is a great “disconnect between the academy and the profession.”
Roberts continued, “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”
Roberts added that he doesn’t necessarily think anything is wrong with such an approach, albeit a relatively irrelevant one. “If the academy wants to deal with the legal issues at a particularly abstract, philosophical level,” Roberts continued, “that’s great and that’s their business, but they shouldn’t expect that it would be of any particular help or even interest to the members of the practice of the bar or judges.”

On one level I'm annoyed by Roberts' faux-populist anti-intellectual carping, in which the former Covington & Burling Hogan & Hartson partner with a couple of Ivy League degrees in his pocket implies he's just a plain-spoken country lawyer, who doesn't cotton much to fancy book larnin.' What's more annoying still is the reaction this elicited from some law professors, who rushed to assure Roberts that if he just took time out from his summer vacation to look at some recent law review issues, he would find them filled with all sorts of practically useful advice for judges and lawyers.

This little spat raises the question of what sort of legal scholarship, if any, school faculties should be producing, given the very high price tag their publications command. People like Justice Roberts and Judge Edwards have an answer to that: law professors should be writing things that help judges and lawyers do their job -- what Edwards, in a somewhat infamous law review article published nearly 20 years ago, called "practical scholarship." (Roberts' claim that he doesn't care if legal academics busy themselves publishing obscurantist arcana, as long as they don't expect their work to be of any use to judges and lawyers, seems like a purely rhetorical gesture). The defensive responses of law professors, who protest they are in fact producing "muscular critiques of contemporary legal doctrine," rather than Kantian meditations on 18th-century Bulgarian civil procedure, indicate that many legal academics -- I would venture to guess the overwhelming majority -- agree. From their perspective, "legal scholarship" means, essentially, writing things that will be of practical use to judges and lawyers.

Indeed, there is something very strange about complaints such as Edwards' and Roberts.' The claim that we are suffering from a shortage of "practical" scholarship -- meaning, in Edwards' and Roberts' terms, traditional doctrinal scholarship aimed primarily at the bench and the bar -- is about as plausible as claiming America is currently suffering from a shortage of reality TV shows. Vastly more traditional legal scholarship is being published now than when Judge Edwards was an articles editor of the Michigan Law Review in the 1960s. This is because while the percentage of what Edwards' calls "impractical" (non-doctrinal, and/or non-normative, and/or interdisciplinary) scholarship has increased significantly, the large majority of what law professors publish still falls squarely within the traditional model, while at the same time, because of the increase in the size of the law faculties and the raising of publication requirements by law schools, the total amount of legal academic publishing has grown by several orders of magnitude.

Since Roberts' joined the SCOTUS, legal academics have published literally hundreds of perfectly traditional doctrinal articles, not merely about the Supreme Court, but focused on the current Supreme Court's work product. I would venture to guess that the number of these articles that have been read by any member of the Court could be counted on the fingers of Mordecai Brown's pitching hand, with a couple of digits to spare. Which raises an awkward fact about legal scholarship aimed at judges and other legal decision makers: The evidence is overwhelming that the putative audience for this writing ignores it almost completely. In this regard judges are no different than anyone else. The typical law review article is read by perhaps five people: the author, one or two of the author's more diligent colleagues, and a couple of law review editors.

Edwards and Roberts claim they want legal academics to write "helpful" things, but judges already have plenty of reading material to help them decide cases, in the form of briefs and bench memos, which deal directly with the cases actually before them at any particular time. The claim that they wish to enrich their professional literary experiences with a wider selection of doctrinal legal scholarship than is available to them currently is, to put it far more politely than this claim deserves, highly disingenuous.

Given the void into which almost all it immediately tumbles, is traditional doctrinal legal scholarship good for anything? I would not go so far as to claim it has no value: even under current technological conditions, which allow a lawyer or clerk to find judicial opinions and summaries of their content much more quickly than in the pre-online era, there is some value added to the system by having a certain number of diligent judicial factotums organize, categorize, and critique the current structure of legal doctrine. But the key modifier here is "a certain number." That number, in my view, is surely much lower than the number of legal academics (several thousand) who dedicate their intellectual energies to this particular endeavor.

Well then what about the non-traditional scholarship that Chief Justice Roberts and Judge Edwards disparage? That is a subject for another post.

8 comments:

You are setting legal education on fire. All over the internet professors are freaking out and coming up with every possible way to attack and undermine you, but their side stepping, long winded, meandering and nuanced defense of law school rings hollow compared to your bitingly simple, well evidenced and honest critiques.

Speaking as a research attorney for a court of appeal, I have to say that I find law review articles generally irrelevant. A "critique" of contemporary legal doctrine, no matter how "muscular," is useless to me, because a court has to apply the law as it is, not the law as the author (in his or her rarely humble opinion) thinks it should be. That kind of article is pure onanism.

1) A lot of academic output on USSCt case law. Much less commentary on state courts and inferior federal courts. There used to be a lot more of that in the law reviews 50+ years ago, and having the legal academy do that served an important purpose: practitioners can't tell their state supreme court that they've thrown the law of [X] into disarray through their incompetence.

2) What doctrinal scholarship there is tends to focus on those issues that can be addressed without any understanding of the practical and procedural context in which they arise, which leaves a lot out.

3) Relatedly, in the medical academy, a lot of work is being done now on best practices for patient care (e.g., Atul Gawande and his checklists). I can't think of anything remotely comparable in the legal academy. Do law professors know anything about document review or taking depositions other than that they've managed to avoid those things?

There is a lot of empirical criticism of judicial product, especially of U.S. Supreme Court product, in the law reviews. Much, even most, of it, however, is negative to downright scathing. Of course Roberts isn't going to have much use for that. His attitude towards the scholarship on the Court's work is just another variation on epistemic closure.

I expect your numbers are right in a per article basis but throw this into the mix. About 250 law reviews, 4 issues a year, 4 articles and issue. This means, very conservatively 4000 articles a year. Virtually all of them are unread except by a few and may no difference in overall social welfare,

As a practicing lawyer, an academic's armchair quarterbacking of what I do every day is typically not useful. Many of the law review articles that I see fall into that category - and often don't include anything useful and don't have any new insights to offer (just because no professor has offered an insight in "academic circles" doesn't mean that it is new to practicing lawyers.)

However, statistical studies can be quite useful to practitioners. We don't often get a chance to collect and analyze that data.